If you like the Supreme Court’s striking down Donald Trump’s tariffs—or if you hate it— you can thank John Marshall.
In 1803, Chief Justice John Marshall established the Supreme Court as the arbiter of the Constitution. Congress and the President can give their interpretations of the Constitution, but it is the Supreme court that ultimately determines whether their actions can stand up in court. If someone defies President Trump’s tariff and refuses to pay it or collect it, the Supreme Court’s ruling ensures that they cannot be convicted and punished. It also seems to be leading to a legal morass to sort out the claims of companies seeking refunds for illegal tariffs they’ve already paid. And it has sent the administration scrambling to find legislation that would authorize other, more limited tariffs.
All of this because of John Marshall.
It all came of Marbury v Madison, my favorite lecture when I taught Political Science at Hamline University in St. Paul. It had everything that would appeal to my bright twenty-year-old students: injustice, personal antagonisms that were off the chart, lawyerly inventiveness, presidential politics, and an outcome that still impacts our lives today
It all started with petty ambition. In his final days of office, President John Adams made several judicial appointments. For the appointments to take effect, each judge had personally to be given his letter of appointment, and the letters had to be delivered by the Secretary of State. Well into the evening of the last day, the Secretary’s messenger was out delivering these appointments, hence the term “Midnight Judges” that you probably remember from high school history. Some of these letters failed to get delivered by the time President John Adams left office. Among these undelivered letters of appointment was one naming William Marbury to be a justice of the peace in the District of Columbia.
The Jeffersonians resented this last minute ploy of Adams to stack the federal judiciary with Federalist judges. And when James Madison took office as Secretary of State for the new President, Thomas Jefferson, Madison refused to deliver the appointment letter to Marbury.
Marbury reacted by seeking help from one of President Thomas Jefferson’s most bitter opponents, Chief Justice John Marshall. He asked the Supreme Court to issue a writ of mandamus ordering Madison to hand over the appointment papers, and he claimed that that the 1779 Judiciary Act gave the Supreme Court original jurisdiction over such cases.
This put John Marshall in a dilemma. On the one hand, it gave him the opportunity to put Jefferson in his place, and he wasted no time doing so. Marbury had a legal right to his commission, wrote Marshall, and the refusal of Madison and his boss Jefferson to deliver the commission was a clear violation of the law.
On the other hand, if the Supreme Court ordered Madison to do that, it was clear that President Jefferson would not allow the Court’s orders to be carried out. This would be a disaster for the court, because it would risk making the court irrelevant in national politics. Few things will erode your authority faster than giving an order you can’t enforce.
Marshall sidestepped this dilemma with one of the most clever ploys in American history. This case came directly to the Supreme Court, he noted, because the 1789 Judiciary Act gave the Supreme Court original jurisdiction in cases of this type. But that violates the Constitution itself which specifies a very limited number of types of cases in which the Supreme Court has original jurisdiction. If a lower law conflicts with a higher law, the courts must give precedence to the higher law. And the constitution is our highest law.
About this point in the lecture, one of my students would inevitably ask, “What happened to Marbury?” Alas, poor Marbury did not get his job. He went on to a successful business career until his death in 1835. His Georgetown house in Washington is now home to the Ukrainian Embassy.
Presidents of course resent judicial interference in their plans. And Trump is no different. He blasted the judges who voted against him as a disgrace, and he apparently was upset that two of the votes came from judges he himself had appointed to office. But judges don’t always do what their presidents want. He should have remembered the words of President Dwight Eisenhower (1953-61). A reporter once asked him if he’d ever made a mistake as president.
“I’ve made two mistakes,” responded Eisenhower. “And they’re both on the Supreme Court.
